Legal Topics for Canadian Criminal Investigators

More and more legal knowledge is expected of officers investigating
crime. I offer here some thoughts on criminal law. I hope
they help.

These are my opinions only, not those of any government agency.
Please do not view them as a substitute for legal advice. If you find errors
or have suggestions, please email
me.

-
Henry Waldock

2014.10.12 - Website slowly returns

From September 2013 to the end of August
2014, I worked as legal counsel for the Independent
Investigations Office. During that time, I took this website
off-line. Providing legal information to police did not accord
with my position in that agency.

In September 2014, I returned to Crown
Counsel, which allows me to publish my suggestions on criminal law.

Much can happen in a year. I want to
review each of the pages of the old site for accuracy before putting
them back online. You will find much under construction over the
next few months.

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New Law

Mr Fogarty, 2015 NSCA 6 crashed his Crown Victoria into an oncoming
Mustang. The occupants of the other car died. An investigating officer
figured that drugs impaired Mr Fogarty's ability to drive. That
officer made a DRE demand, and told him about his right to counsel. He
called a lawyer and got advice. After the evaluation, the DRE officer
demanded a blood sample, but didn't offer him any further opportunity to
call a lawyer. Mr Fogarty complained that this breached his rights: any
time an investigation changes, police should give the suspect fresh
access to legal advice.

The trial judge disagreed. Consider the legislation:

An officer who forms reasonable grounds to believe that drugs impair a
driver's ability to operate a motor vehicle may demand that the driver
undergo an evaluation by a Drug Recognition Evaluation. s.254(3.1)
If that officer reaches the same conclusion, that officer may demand a
blood sample for analysis. s.254(3.4).

Because a lawful DRE may logically lead to a blood demand, the court
held that the blood demand was not a new or unexpected investigative
tactic.

The appeal court judges agreed with the trial judge.

But they sounded a cautionary note: "Mr. Fogarty said nothing to
indicate that his initial legal advice was inadequate or to request a
re-consultation with counsel."

What if your suspect complains that his initial legal advice didn't
cover what to do if the officer demands blood? I suggest that you
give the suspect an opportunity to get further advice.

2015.02.12 False Complaints to Police

Sometimes, people report crimes that never happened commit. If
they do it with intent to mislead, and you act on it, then they commit
public mischief (Criminal Code - s.140).
People like me can prosecute them.

But can they be sued?

Apparently, police investigated Mr Caron
2015 BCCA 47 because young Miss A. told police that he raped her.
He sued her for defamation. His claim explained that the police
investigation proved he was working in another province at the time of
the alleged rape.

Her lawyers asked the court to dismiss the lawsuit without hearing
evidence. They argued that allowing such a lawsuit might frighten true
complainants. Who wants to complain to police about being raped if
you might get sued for it?

The court allowed the trial to proceed: she could be found liable if
the evidence showed that she acted maliciously, but not if she made an
honest mistake.

I am not an expert in civil law. There may be nuances in this decision
which I missed.

But the decision does identify dangers in sexual assault complaints.

Sometimes people make false complaints. Such allegations can do
terrible harm, especially sexual complaints. Be wary of our natural
human tendency to sympathize with complainants.

Sometimes, true complaints come from vulnerable, inarticulate people
who omit parts of the story because of shame or fear. Ignoring,
dismissing or lecturing them can do terrible damage too. Not long
ago, I worked with a woman who deeply distrusted police. She had
good reason. Officers ignored or dismissed her complaints both
times she was sexually assaulted. The jury believed her second
complaint. But she won't ask police again to investigate the first one.
Beware of dismissing a complaint too quickly.

Damned if you believe her. Damned if you don't. Investigate
sensitively. Keep in mind the possibility of innocence.

2015.02.05 Testifying about the Law

Professional witnesses, particularly police officers and experts
witnesses, usually know some of the law which applies to their
field. Sometimes these witnesses know the applicable law better
than the lawyers who question them. Pride can lead to a fall - exercise
some humility.

Dr Steven Hucker knows more about mental disorders than most folks.
He's a smart guy. Ms Campione,
2015 ONCA 67 murdered her children. At her trial, the defence
presented evidence that she was "Not Criminally Responsible by reason of
Mental Disorder" (NCRMD). Dr Hucker disagreed. While explaining to
the jury why he disagreed, he discussed the complicated legal rules
which determine whether a person qualifies for this defence.

Defence appealed, complaining that Dr Hucker got the law wrong, and
therefore he misled the jury.

The appeal court rejected this complaint. Dr Hucker got the law right.
It's good to know the law that pertains to your work.

But Dr Hucker did another clever thing which you can emulate.
When he testifying, he claimed no authority in interpreting the
law. When discussing the leading case, he explained it "...
as I've understood it". He emphasized that law is not his
area of expertise: "That's obviously using my lay
professional’s understanding of what the case law tells
us." He left the job of explaining the law to the judge.

Smart.

When testifying, never tell the judge, the lawyers or the jury what the
law is -- even if you know more about it than anyone else in the room.
Instead, qualify your testimony: "As I understand the law...". Law
is the judge's job. Take the humble path: "Well, you're the
experts on this, but I understand that..." If it turns out you're right,
you look brilliant and unmotivated by ego. If you're wrong, your
humility earns forgiveness.

The law changes too. For example, the rules around searching cell
phones incidental to arrest changed. If it changes between investigation
and testimony, you can say "As I understood the law at the time of this
search..."

2015.01.29 DNA needs Context

In the women's washroom of a restaurant a black guy quietly peered over
the wall between one stall and another, so that he could watch a woman
use the adjoining toilet. When she noticed him, she ran screaming
from the washroom. Police attended. They found a pop bottle on the
tank of the toilet in the stall where the man had been. A swab of the
mouth of the bottle contained DNA matching Mr Mufuta,
2015 ONCA 50. Case proved, right?

Nope. Not with the DNA alone.

Maybe Mr Mufuta drank from he bottle, and someone else moved the bottle
from his table to the washroom. Maybe the felon took his
drink. Maybe a waitress took a detour from clearing his table, and
left something behind in the washroom.

An officer watched the restaurant security video and saw three black
men attended the restaurant. One black man entered the washroom
area minutes before the woman, and left three minutes later. Too bad the
officer didn't get a copy of the security video right away. Within three
weeks, the system overwrote the video. The recording was
unavailable for court.

The trial judge convicted Mr Mufuta, and the appeal court upheld the
conviction, not because of the DNA alone, but because of the DNA in the
context of other evidence, including:

Police attended promptly and froze the scene of the washroom.
Nobody could have moved the bottle into the washroom after the
incident.

The court heard testimony about the cleaning schedule, which
precluded the bottle from having sat in the stall for more than a few
hours.

The woman said that the voyeur was a bald black man. At the
time, Mr Mufuta was a bald black man.

The video showed that the three black men entered together, and left
together just after the incident.

This case offers several lessons:

Security video is perishable. If the staff let you watch it, but
promise you copies later, then take detailed notes of what you see,
including whether the time stamp matches the current time.

Freezing the scene can preserve evidence.

Investigate the scene - who entered it between offence and police
arrival? What did they do?

DNA evidence needs context before it can prove the case.

2015.01.26 s.10(a) of the Charter - Should you Name the Victim?

When you arrest a suspect, you must identify the offence, so that the
suspect can decide whether to cooperate with your investigation, or keep
silent.

The law does not require you to provide detail. Quite often, at the
early stages of an investigation, you don't have much information. Quite
often, the suspect knows more than you. Therefore, it generally isn't
wrong to arrest for "murder" without identifying the victim. (2005 ABCA
430)

How much information should you give a suspect about the offence? As a
matter of tactics, giving the bare minimum can produce evidence.
For example suppose you tell your suspect "You're under arrest for
murder", and the suspect replies "Mabel's dead?" Whether or not you were
investigating the death of Mabel, you now know that your suspect knows
something about harm that came to her.

But there's a downside to being coy. It can look cheap and unfair.

In W.L.,
2015 ONCA 37, the investigating officer arrested the suspect for "sexual
assault". The officer did not identify the complainant - the suspect's
step-daughter - until long into an interview. In that interview,
the suspect admitted touching the girl, but at trial, he explained that
he did so only to check her for pinworms. Why didn't he tell police that
explanation during the interview? He blamed police. By arresting him for
assault, and keeping him in the dark, the officer scared and confused
him, so that he did not think to give the exculpatory explanation.

I have not watched the interview. I can not say whether the
investigating officer actually treated the suspect unfairly. The appeal
court focussed on a lawyer's issue. When choosing tactics, remember that
it can look unfair if you don't identify who you say the suspect hurt (MacLean,
2013 ABQB 60) or what the suspect did (J.S.W.,
2013 ONCA 593)

2015.01.24 Fingerprint Experts

- What to Expect when the Attack Comes

When stealing plastic-wrapped dolls from a residence, a burglar left a
single fingerprint behind on the plastic. Ripples in the plastic
distorted the print. Whose finger matched the print?

At first, AFIS - the Automated Fingerprint Identification System -
produced no potential matches for the prints. But almost a year
later, the people at AFIS reported a possible match with fingerprints
taken from Mr Bornyk in 2006 and 2010. Curiously, those prints
would have been in the system all along. Something made this match
difficult.

A fingerprint examiner manually compared the print from the plastic
with a photocopy of the prints taken from Mr Bornyk. He concluded
they matched. According to standard protocol, he passed his work to a
peer for "verification". She reviewed his work, and looked at the
fingerprint to see if she agreed with his conclusion. She did.

The trial judge acquitted Mr Bornyk,
2013 BCSC 1927. He researched scholarly criticisms of fingerprint
analysis techniques, and asked the lawyers to comment on the articles he
found. During arguments, the defence lawyer pointed out differences
between the known print and the print on the plastic. Without asking the
fingerprint expert to comment on the articles or discrepancies, the
judge concluded that they raised more than reasonable doubt about the
fingerprint identification.

The Crown successfully appealed. Mr Bornyk
2015 BCCA 28 faces a new trial. But the appeal court did not vindicate
current fingerprint analysis techniques. Instead, it criticized the
trial judge's procedure. The trial judge was not a fingerprint expert,
and a little research does not make him into one. He should have asked
the expert for his comments. Could the expert answer the complaints of
the scholars? Could the expert explain the discrepancies which
defence counsel identified? Because the trial judge trusted his
own expertise more than the expert, the appeal court found that the
trial judge erred.

But this litigation points the way forward in fingerprint litigation.
Fingerprint experts should prepare to respond in future trials. They
should read the trial judge's list of concerns. Some will return to a
court room near you. I think that the important points in that list are:

By RCMP policy, if any two fingerprint experts ever disagree, the
one who turns out to be wrong loses his or her job. This policy was
intended to make fingerprint evidence reliable. But the community of
fingerprint experts is small. Their collegiality raises concern that
the verification process will lack rigour. Who wants to get their
workmate fired? The policy also prevents experts from keeping open
minds when presented with challenges to their opinions. Who wants to
admit they made a mistake, if doing so gets you fired? Finally, the
verification process looks unscientific: it's not a double-blind test
nor even blind to the expected answer.

Disclosure of bench notes of the fingerprint analysis can
easily break down because:

The analysis often occurs after the initial investigation,

in a separate office.

Disclosure flows from the expert through the investigator
to the prosecutor, and then to defence.

If you have more than one set of known
prints, you should disclose them all to defence.

Some known errors in fingerprint identifications came from
partial prints and prints with poor detail.

On difficult matches where you have multiple 'knowns',
consider using the other knowns to confirm your opinion.

2015.01.22 Tactics for Prosecuting Multiple Accused

Prosecuting several people at once is cheaper than running separate
trials against each one. But the law requires us to prosecute
youth separately from adults. Indeed, the Crown may choose to
prosecute adults separately too. This leads to interesting legal
and tactical considerations for prosecutors and police.

The Crown can require one defendant to testify at the separate trial of
another defendant.

But section 13
of the Charter and section 5
of the Canada Evidence Act prevent the prosecution from using the
accomplice's testimony against him at his own subsequent trial.

For example, Mr P.C., a youth, helped several adults beat a man to
death. The Crown served him with a subpoena to testify at the
adults' preliminary hearing. His lawyers didn't want him to give
his version of the event before his trial. They argued that the subpoena
violated his right to silence. The court disagreed, because of the legal
protections he enjoyed. P.C.,
2011 ONSC 1824.

After his conviction, Mr P.C.,
2015 ONCA 30 complained again that at his trial the prosecutors
cross-examined him on topics they had asked him about at the other
defendants' preliminary hearing. The appeal court accepted the
prosecutor's explanation: at Mr P.C.'s trial, they only cross-examined
him using information they got from other sources than his testimony at
the prelim. For example, at the prelim he said he knew in advance that
there would be a beating. At the trial, the prosecution suggested that
same fact to him. But the prosecution already knew the answer, because
they knew he previously told his sister that fact.

There are limits to this strategy. The Crown can not use this tactic
directly or indirectly to develop the case against the witness. In R.
v. Z., 2001 CanLII 8539 (ON CA), the prosecution used the same
general tactic. The Crown called Mr Z at the preliminary inquiry of
other defendants. Later, defence counsel called a witness B. During the
cross-examination of B, the prosecutor pressed him to explain Z's
behaviour during the offence, and used Z's testimony to push B into
incriminating Z. Then Mr B. testified at Mr Z's trial, and
repeated the incriminating testimony. Mr Z successfully appealed.
Because the prosecutor used this Z's testimony indirectly against him,
the prosecutor violated Mr Z's rights.

If the Crown chooses to proceed like this, your investigation against
the witness must be complete.

If - after the Crown compels the accomplice to testify - you produce
new evidence against the accomplice, it will appear as though you used
his testimony at the preliminary inquiry to identify investigative leads
against him. And that could cause problems at his trial.

2015.01.19 Testifying - Dos and Don'ts

- Credibility Assessments

At a trial, the judge or jury decides whom to believe. Not the
witnesses. For this reason, avoid expressing opinions on whether or not
you believed what witnesses told you, unless specifically asked.

At trial, the prosecutor asked the officers who
interviewed them to describe their demeanour:

Q
What was her -- what sort of shape was she
in when you got there?

A She was very
emotional. I would say under the influence of alcohol, but not
to the point where she wasn’t -- and she was giving a story that
was credible, with detail, believable. She was
emotional. She -- she was quite -- quite emotional and somewhat
under the influence but not heavily so.

...

Q
And could you describe her demeanour during
that interview?

A
Again, she -- she was upset by the whole
situation. But she was much more composed, less emotional than
the previous evening, and she gave a pretty coherent and detailed
statement

As you can see, the officers went beyond
demeanour, and into credibility. After the jury convicted, the
appeal court overturned the conviction, and ordered a new trial.

When testifying, listen to the question asked,
and answer it.

If a lawyer asks you whether a
witness or a dispatcher gave you information, answer only that
question. Don't recite what the witness or dispatcher told you
unless specifically asked.

If a lawyer asks about the demeanour of a
witness, talk about what the witness looked like and how she
behaved. Don't talk about whether you believed her.

2015.01.17 RCMP Labour Relations

Here are links to the SCC's decisions yesterday on the RCMP members'
challenges to existing labour relations and remuneration structures.
Because I know I have no expertise in labour law, I am not foolish
enough to express any opinions about them.

2015.01.13 Search & Seizure - Detention

At 2:30am, someone called 911, but hung up before speaking to the
dispatcher. The call came from a troubled part of town. Police attended
and knocked, but nobody inside responded. Fearing that the occupants may
have suffered harm, they called building security to let them in. As
they waited, police saw Mr Peterkin,
2015 ONCA 8 walk along the street, into the fenced back yard of that
unit. There, he used his cell phone. The officers approached him and
asked him what he was doing, and whether he knew the occupants of the
residence.

He looked startled to see police. No, he didn't know the
residents. He was waiting for a ride, he explained. And indeed,
his girlfriend shortly arrived.

The officers found this odd. If he expected someone to pick him up,
surely he would stand nearer the street, where the driver would see him,
rather than duck into a yard near a house. One officer detained
him, but made incomplete notes as to why. Nor did he explain to Mr
Peterkin all his reasons for detaining him. The officer's
testimony in prelim on this point conflicted with his testimony at
trial. The officer did tell him about a right to counsel, but did not
mention immediate free legal aid.

Mr Peterkin stood strangely. He held his right arm against his chest,
and stood sideways to the officers. The officers called this "blading".
They obtained his driver's licence from him, and gave it back. He
accepted it in his right hand, but did not extend his arm.
Instead, he turned his body so that his arm remained against his chest.

The officers suspected that he carried a weapon, and told him they
wanted to search him. He attempted to flee. The officers stopped him,
searched and found money, drugs, a loaded handgun and ammunition.

Defence complained that the officer:

lacked grounds to search Mr Peterkin, and

they failed to explain the reasons for his detention and

failed explain his legal rights properly.

In his
reasons trial judge admitted the evidence because the officers
gave good reasons for detaining and searching Mr Peterkin. Failure to
explain the reasons for the detention and the right to counsel did not
cause the discovery of any evidence.

Mr Peterkin appealed unsuccessfully. Meanwhile, a majority of the
Supreme Court of Canada muddied the law of safety searches in a case
called MacDonald,
2014 SCC 3. The majority seemed to say that you need reasonable
grounds to believe that the suspect posed you a danger before
you could search for officer safety. The minority identified flaws
in their logic, and concluded all you need is suspicion that
the suspect possesses a weapon that poses a risk to you or the public.

The Court of Appeal relied on the officers' clear explanations for why
they suspected Mr Peterkin carried a weapon, and upheld the conviction.

The defence arguments identify the important issues for police:

Identify and record the reasons why you suspected or believed
someone did something wrong. It often feels like instinct, but
if you take time immediately after the event to record your
observations of the scene and suspect, you can explain logically why
your suspicions arose. Defence counsel will pounce on gaps in your
notes, and accuse you of making things up on the witness stand. You'll
be glad in court that you wrote a full explanation in your notes.

Explain to the suspect why you detained / arrested him. At trial,
this officer offered two reasons for the detention. At the preliminary
inquiry, he offered only one. On the street, he didn't really explain
at all. I imagine the cross-examination wasn't fun. Some traffic cops
like to ask speeders "Do you know why I stopped you?" It's a cute
tactic to elicit an admission of speeding. But it violates s.10(a).
You must tell people why you stopped them. You are not obliged to
explain every reason, but you must explain at least one lawful reason
for detention.

On "detention", your suspect is entitled to counsel, and the full
explanation of the right to counsel.

A few months ago, I reported that in Croft,
2013 ABQB 640, police obtained a production order against a telephone
company to get text messages that the company stored in its servers
after they were sent. The court found that this constituted
"interception of communication", and therefore unlawful.

This suggests that you should stop using production orders to get text
messages from Telus. If you have a case that did, let your
prosecutor know about this decision. The judge extended the
reasoning in R.
v. Telus Communications Co. 2013 SCC 16 beyond what the SCC
decided.

However, a recently-published decision suggests otherwise. In Carty,
2014 ONSC 212, the police did the same thing - several times in a row.
The judge reached the opposite conclusion. Production orders for stored
text messages are a lawful method to obtain them.

Judges disagree. Get advice before choosing the easier route.

2014.12.30 Presence isn't Participation

Mere presence at the scene of an offence isn't evidence of
participation.

An undercover officer called a drug dealer, and met to purchase drugs.
A guy named Santino answered the call, and gave instructions which the
officer followed. The officer went to a hotel and knocked on the door of
a room. Inside, the officer met Santino and another guy named Nyuon,
2014 ABCA 130. The officer asked Nyuon "What's going on?"
Nyuon replied "not much...just hanging." Spread out on a table in the
room were pieces of crack cocaine. Nyuon must have known what was going
on. The officer bought crack from Santino in Nyuon's presence.

Mr Santino was trafficking in drugs for sure. But what about
Nyuon?

One may reasonably infer that Santino would not possess or traffick
drugs with Nyuon present unless he trusted Nyuon. One may reasonably
infer from the dangers of the drug trade that Santino needed Nyuon to
provide security, and therefore Nyuon knowingly assisted Santino in the
transaction. These facts lead to a reasonable inference that Nyuon was a
party to the offence.

Therefore, you might lawfully arrest Mr Nyuon in these
circumstances. But does the evidence prove guilt?

No way.

The case against Nyuon is circumstantial. There are other possible
inferences. He may have just been Santino's trusted customer who was
"just hanging" around.

Presence at the scene of a crime may suggest participation, but you
need more evidence than mere presence to prove guilt.

2014.12.19 Warrantless Arrest - Out of Province Warrant

When you find a guy who has a warrant outstanding in another province,
can you arrest him?

An officer found Mr Marges
2012 YKTC 102 driving in Whitehorse. Because Mr Marges smelled of
liquor on his breath the officer investigated his sobriety, and
eventually made him blow into a screening device. Meanwhile, over
the radio came information that a Saskatchewan justice issued a warrant
for his arrest for trafficking.

Could the officer arrest Mr Marges?

It's easy to get this one wrong.

Because a Saskatchewan justice enjoys jurisdiction only in
Saskatchewan, his or her warrant lawfully authorizes arrests only in
that province. The officer couldn't arrest Mr Marges because of
the warrant.

The existence of the warrant suggests that a judicial officer heard
enough evidence to decide that probably the accused committed an
offence.

That could persuade you that the accused probably committed an
offence. And if you believe that the suspect committed an offence,
then maybe you can arrest him.

But what kind of offence?

You can make warrantless arrests for indictable offences.
s.495(1)(a).

Trafficking is strictly indictable, right? Nope. Section 5(3)(a.1)
of the CDSA allows for summary conviction prosecution for trafficking in
some substances.

Therefore, the existence of the warrant for trafficking did not, by
itself, establish reasonable grounds to believe that Mr Marges committed
an indictable offence.

The judge found that this officer jumped the gun. He should have
made some radio calls to find out a bit more about the warrant, and the
facts behind it. (He actually did, but he got conflicting
information as to whether the warrant would be extended beyond
Saskatchewan.)

As a matter of practice, when you're deciding whether to arrest someone
on the strength of a warrant from out of province, you want to know
whether the prosecution will be by indictment, and it helps to know some
facts about the case. This judge found nothing wrong with detaining
the suspect while you check out the details.

The Supreme Court of Canada finally explained what searches of cell
phones police may do after an arrest. In a 5:4 split, they decided
that you can search a cell phone incidental to arrest, but set some
limits and conditions which represent a compromise between the various
different conclusions past judges reached.

Two men robbed a jewellery merchant at gunpoint and fled in a black
car. Eyewitness descriptions and the licence plate led the police
quickly to locate and arrest Mr Chapman and Mr Fearon,
2014 SCC 77. But they didn't find the jewellery or the gun.
In his pocket, they found a cell phone. They checked the text
messages and found an unsent text (“We did it were the jewelry at nigga
burrrrrrrrrrr”). In the photos, they found an image of a
handgun. At trial, the officers explained that they were in a
hurry to find the missing items, and thought that the phone might
provide leads.

Mr Fearon and various civil liberties organizations argued that police
needed a warrant to search in his phone. Three of the judges
agreed. But four decided that where an investigation requires
prompt examination, you may search without a warrant - within limits.

What are those limits?

Lawful arrest - as with all searches incidental to
arrest, the search depends upon a lawful arrest. A lawful arrest
requires reasonable grounds to believe (and belief) that the suspect
committed an offence for which s/he may be arrested without a warrant.

Search truly incident to arrest - you can't poke
around in a cell phone just because you arrested someone. You
need reasons connected to the arrest, such as protecting people, or
preserving or discovering evidence relevant to the offence. Even
if you can justify looking at the suspect's texts or photos, you can
only look back so far in history as is truly relevant to the
offence. You can't prowl through the whole phone.

Serious offence - "a search
of a cell phone incident to arrest will generally not be justified in
relation to minor offences." When you stop a distracted driver,
you can't snoop through his or her phone for evidence to prove they
were texting and driving. Robbery, rape and murder plainly qualify.

Pressing investigative need
- although the court rejected the notion that warrantless searches of
cell phones should be done only in exigent circumstances, it
introduced a requirement of "immediate investigative purpose".
You should get a warrant unless the circumstances render it
impractical. For example, if you need to look into the phone
immediately for fear of losing evidence during the time it takes to
apply for a warrant, then you can look.

Detailed documentation - if
you do search using this exception, you must take very detailed notes
of what you searched in the phone and why. If you're going to
operate the phone, I suggest video-recording the process including
your explanation of what you're looking for and why.

In Mr Fearon's case, the court found that the officers met the first
three conditions, but not the last. The majority found that the failure
to document breached Mr Fearon's rights, but not so much as to justify
excluding the evidence.

I found the third point the most confusing. The majority rejected
the notion that police can search only in "exigent circumstances".
But the judges created a pre-condition which closely resembles exigent
circumstances. The court rejected the notion that searches of cell
phones incidental to arrest must require police to have reasonable
grounds to believe that evidence will be found. But in
the many cases where there is no urgency in searching the phone, police
must get a warrant. To get a warrant, they'll need to meet that
standard - even though it's a search incidental to arrest.

2014.12.10 Reasonable Grounds - Articulating your Beliefs

Tipsters told Cst Emberley that Mr Day,
2014 NLCA 14 was trafficking drugs. Cst Emberley applied for and
obtained a warrant to search Mr Day's house, but he didn't write all the
information he knew into his application. After obtaining the
warrant, but before searching the house, surveillance officers saw Mr
Day walk out of a bar with two young women in a manner that looked like
a sale. Cst Emberley directed the officers to arrest Mr Day.
They found drugs. Although Cst Emberley later searched the house,
the prosecutor withdrew all charges relating to what he found
there. The prosecutor didn't think the warrant would survive
judicial scrutiny.

At trial, defence threw a clever question at Cst Emberley:

If the judge had refused your warrant, would you have arrested
my client?

If the officer said "yes", defence could argue that the officer was an
undisciplined rogue, who would arrest people even after a judge told him
he lacked sufficient grounds. If the officer said "no", then the
defence could say that the officer didn't really believe that he had
reasonable grounds to arrest.

Cst Emberley deflected this question:

He declined to speculate what he would have done.
He tried to point out that judges may refuse to grant a warrant for
reasons other than the sufficiency of grounds.

Based on this, the trial judge found that at the time of the arrest,
the officer didn't actually believe that he had sufficient grounds to
arrest. The judge excluded the evidence.

The Court of Appeal and the Supreme
Court of Canada rejected the trial judge's findings because they
had no foundation in the evidence.

The officer never said he wouldn't have arrested.

An officer may arrest when s/he believes that the suspect is probably
guilty, and the evidence available to the officer makes this a
reasonable conclusion. You must take a judge's opinion about the
sufficiency of your grounds very seriously. But if you have
information that the judge did not know, you may reasonably reach a
different conclusion. In this case, Cst Emberley had more
information than the judge. He was entitled to reach a different
conclusion.

Cst Emberley failed to recite all of the information available to him
in his application for a warrant. That caused trouble. When
applying for warrants, recite or summarize all the evidence in favour and
against issuing the warrant.

But Cst Emberley's answers in court were accurate and fair. He
declined to speculate on what he would have done if things had gone
differently. That's appropriate. When testifying you can
decline to speculate about things that never happened.

2014.12.07 Wrongful Conviction - The Harm of Non-Disclosure

In a big investigation, leads and minor bits of evidence can sometimes
fall by the wayside. That can lead to problems.

In a basement suite in Surrey in 2004, a woman was raped. She
said three men were there, but only two assaulted her; and one of those
two owned the place. Mr Dhillon,
2014 BCCA 480 owned the place. Police found him naked and
intoxicated in the suite, only hours after the rape.

The woman said that one of the rapists fathered her child.

The judge convicted Mr Dhillon of the rape. After he served his
sentence, he was deported.

Although police disclosed to the Crown that some DNA turned from the
forensic examination of the victim, some DNA results never reached the
prosecutor.

After the conviction, DNA sampling of the accused went to the DNA
databank. Nobody noticed it failed match either of the male
profiles from the victim. Only when one of those two male profiles
matched some other guy, years later, did police re-examine the
case. Mr Dhillon's DNA didn't match either profile, nor the baby's
DNA.

He could possibly be innocent.

The court granted him a new trial, and then stayed those
proceedings. He had already served his sentence, and the
likelihood of conviction was low.

Full disclosure matters, even when it seems obvious that the
right guy is charged.

I argued this case and I think it's interesting. Perhaps that's
why this summary goes longer than usual.

Early one morning, a naked woman screamed for help from the third floor
balcony of an apartment building. A neighbor called police, who
attended and found her outside in the parking lot. She said a
stranger in the building raped her. She said he used no
condom. She wasn't sure if he ejaculated. About 3 1/2 hours later,
when Sgt Santosuosso knocked, Mr Harasemow,
2014 BCSC 2287 came to the door of the apartment in question. Sgt
Santosuosso noticed:

he was alone

he looked dishevelled

he did not smell like he had recently showered

Mr Harasemow made a comment which reasonably led Sgt Santosuosso to
believe he found the rapist, so he arrested Mr Harasemow. After
reflecting and conferring with a forensic identification member, he
directed his team to seize DNA evidence from the suspect.

Before Mr Harasemow got to speak to a lawyer, the officers:

seized Mr Harasemow's clothes,

swabbed his hands and his penis for the victim's DNA, and

took fingernail clippings.

The woman went to a hospital. She permitted a forensic nurse to
swab her genitals for DNA evidence.

The forensic lab found traces of male DNA in the swabs from her body,
but not enough to identify him. At trial, a DNA expert testified
that before ejaculation, men often leave too little genetic material in
the woman to allow for identification.

But they found her DNA on the swab from his penis.

Mr Harasemow didn't want that evidence admitted. He argued:

police can't swab a suspect's genitals for DNA without judicial
oversight: they need a warrant.

before doing such an intimate search, police must let the suspect
obtain legal advice.

police can't clip fingernails of suspects because it violates their
s.7 right to security of the person.

The judge rejected all of these arguments:

Where police have reasonable grounds to believe that an intimate
search incidental to arrest will
preserve evidence of an offence, police do not need a warrant.

Because this involves preserving evidence
which has a short life-span (another person's DNA) rather that eliciting
evidence from the suspect, legal advice would not have assisted the
accused.

Clipping the fingernails was reasonable under the circumstances.

The judge let the jury hear the DNA evidence.

Swabbing the genitals of the suspects of recent rapes can provide
crucial evidence. After being raped, not every victim will permit
forensic sampling from her body. According to the DNA expert in
the case, even if she does permit it, many attackers leave insufficient
genetic material in their victims to identify them - especially if he
does not ejaculate.

I think you don't need a warrant. But I do think that these
searches raise specific concerns:

You need reasonable grounds for the arrest.

Furthermore, you need reasonable grounds to believe that you will
recover evidence of the offence from swabbing genitals or clipping
fingernails. If the suspect subsequently showered, or the rape
occurred more than 24 hours ago, such a swab looks like a fishing
trip.

The judges want you to think twice before doing it: get a senior
officer to approve this kind of search.

Protect the suspect's privacy as much as possible. Minimize
the number of people who observe his nudity (but have back-up on
standby in case of resistance). Don't make him strip fully naked
before giving him replacement clothes to wear.

Document the process carefully: audio-record it, and consider
video-recording. If you do video-record the suspect's private
parts, permit access to the recording only to those who need it, and
track who sees it. If you do video-record, consider recording
all but the genitals. (However, in Laporte, the suspect screamed
out in pain when the swab touched his penis. The officers
involved believed he was faking; but the judge accepted that the
search did cause pain. Video-recording the swab touching the penis
might have resolved this difference of opinion.)

The suspect enjoys a right to legal advice without delay. This
right raises problems. Telling the suspect of your intended
search may motivate guilty people to destroy evidence. While
getting legal advice in private, the suspect may destroy the evidence
by rubbing his genitals, or even simply peeing in his pants. Some
lawyers may advise their clients to resist you; others may advise
their clients to cooperate. In Harasemow's case, the officers
did the genital search while waiting for Legal Aid to call back.
In Laporte's case, the suspect tried to rub the DNA away. If you
decide to let the suspect talk with counsel before the search, make
sure you can watch him, and intervene if he appears to be destroying
evidence. If you decide to swab first, document why you feared
that you would lose evidence.

Rape victims endure forensic examinations of their bodies which last an
hour or more. Swabbing a rape suspect's penis takes seconds.
You may find the latter task distasteful, but you may recover valuable
forensic evidence. The expert in this trial testified that this
kind of evidence perishes quickly - 4-24 hours.

This case suggests that in B.C., officers may proceed with some
confidence. The Ontario decisions suggest that police should give
access to counsel before swabbing genitals. In Manitoba and
Alberta, genital swabbing without a warrant remains controversial.
I hope they re-litigate the issue there.

2014.11.28 Arrest and Detention - Getting your Grounds

- Dispatcher Error

Someone shot Mrs Stevenson in the head.

Near the end of her messy divorce, she was just stepping out of her new
residence to go to work. Her new paramour found her moments later,
dying. He called police.

The Brockville police attended quickly, and asked him who might have
done this. He said that Mr Stevenson
2014 ONCA 842 was a "possibility", and that Mr Stevenson had the
kids in Malloryville, 25km down the road. This information did not
provide reasonable grounds to believe in Mr Stevenson's guilt,
but certainly reason to suspect him.

The officer radioed his dispatcher, who conveyed the information to the
dispatcher responsible for Malloryville.

Unfortunately, the information changed as it travelled. The
officers in Malloryville received radio broadcasts that identified Mr
Stevenson as the shooter. Relying on that information, they
arrested him. They bagged his hands, and took him to Brockville.

By the time Mr Stevenson arrived in Brockville, the Brockville police
had gathered sufficient evidence to justify arresting him: he drove a
car similar to a vehicle which left the area at the time of the
shooting; he threatened the complainant, and was serving probation for
it; he had been in town that day; they learned of the messy
divorce. But they didn't arrest him, because the Malloryville
officers had already done that.

The Brockville officers swabbed his hands, and found gunshot residue
(GSR). An expert explained to the jury how this suggested that he
recently fired a gun. They convicted him.

Defence complained that the police obtained this evidence as a result
of an unlawful arrest. Reasonable suspicion justifies detention,
but not searches of the person for evidence. Was the GSR
admissible?

The court found that the original arrest breached Mr Stevenson's right
to be free from arbitrary arrest. The court could have excluded
the GSR evidence. Instead, the judge admitted the evidence, in
part because:

when the officers first arrested, they actually had sufficient
grounds to detain;

by the time they searched, they had grounds to arrest;

the communications error was an inadvertent mistake.

Mr Stevenson's conviction for murder survived appeal.

This case shows why courts dislike hearsay: people can garble
information as they hear and repeat it.

Grounds to arrest or detain often rely on hearsay. Police
officers can't operate like judges: to act quickly, you must rely on
some information that comes to you second hand. But even
dispatchers get information wrong sometimes. Double-checking the
hearsay evidence you receive when drafting search warrant applications
can save you loads of trouble later. If you have time to
double-check hearsay before arrests, you may avoid the embarrassments of
this case.

For dispatchers, this case illustrates the importance of relaying
information accurately. Nobody wants to be the person whose error
resulted in the release of a murderer.

2014.11.21 Possession - Willful Blindness & Innocent Possession

Mr Farmer
2014 ONCA 823 shared an apartment, and computer and a bed with Mr
M.R.. Although M.R. had his own laptop, he used Mr Farmer's
desktop computer extensively, often when Mr Farmer wasn't there.
On the authority of a search warrant, police seized both computers,
searched them and found lots of child pornography on both of them.

Mr M.R. claimed full responsibility for the material.

Mr Farmer told the police that he knew, or at least had a good idea,
that there might be child pornography on his computer, but that he had
not downloaded or accessed it and had no interest in it. He said that he
knew M.R. accessed child pornography in relation to M.R.'s diaper
fetish, and that he had seen M.R. looking at images of teen males
dressed in underwear on the desktop computer. He put two and two
together. But he condoned it because M.R. was his partner for whom
he cared. He took no steps to confirm his suspicion or to delete
all the child pornographic images to prevent further access.

Was Mr Farmer guilty of possession of child pornography?

The trial judge found that Mr Farmer was willfully blind to the
presence of unlawful images in his computer. In his view, that
sufficed for "possession". But he acquitted, relying on the
doctrine of "innocent possession".

The Crown appealed.

The appeal court judges disagreed with the trial judge's reasoning, but
upheld the verdict.

Innocent Possession

They rejected "innocent possession". What's that concept?

It's like this. Suppose I found a bag of cocaine in a playground.
I decide to remove it, to protect children who might discover it.
But if I pick it up and take it home, knowing what it is, then at law, I
"possess" a controlled substance. Should I be convicted or
congratulated? If I take it home for the purpose of calling police
and disposing of it safely, then I am in "innocent possession". I
possess it without any intention to exercise control beyond that needed
to destroy it or otherwise put it permanently beyond my control.

Mr Farmer did not possess the pictures for the purpose of destroying
them or removing them from his computer. Innocent possession did
not apply.

Wilful Blindness

The judges rejected "willful blindness" too. Let's consider that.

“wilful blindness imputes knowledge to an
accused whose suspicion is aroused to the point where he or she sees
the need for further inquiries, but deliberately chooses
not to make those inquiries”, “an actual process of suppressing a
suspicion.”

These judges felt that the facts fell short of establishing that Mr
Farmer actively turned a blind eye to what his lover was doing.

And besides, they reasoned, accessing differs from possessing. Mr
Farmer was charged with possessing. What he ignored was
the possibility that his partner was accessing child
pornography.

I dunno. If the evidence in this case failed to establish willful
blindness, it came awfully close.

For police officers, when you have enough evidence that you figure that
the suspect should have known about the contraband in his control,
knowledge is a great topic to discuss. Many of these folks will
say "I didn't know, and I didn't want to know what was there." Not
wanting to know is wilful blindness. Try asking him: "You're a
smart guy. You knew enough to know that whatever was in the
package was trouble?" "You decided not to look into it because you
didn't want to see, and be sure of your suspicions."

2014.11.16 Right to Counsel - Internet Access and Google

A young impaired driver, Mr McKay,
2014 ABQB 70 got legal advice he didn't like. At trial he
complained that the police had failed to give him access to the
Internet, to allow him to research lawyers to give him legal advice he
might have liked better. The trial judge agreed with this
complaint, suggesting that police get with the times, and let prisoners
use Google.

In this case, Mr McKay never asked for internet access, and never
complained about the legal advice he got. The officers could
hardly be blamed for a problem they didn't know about. The appeal
court ordered a new trial.

But the appeal court agreed that police should permit prisoners to find
their lawyers using modern information systems.

In my opinion, if your prisoner requests internet access in order to
locate his or her lawyer, you should try to provide it - if you have the
means. However, you should supervise the prisoner's efforts to
locate a lawyer because web pages can be used for many purposes other
than research. An impaired driver should not waste time playing
Farmville on Facebook before providing breath samples. After an
assault, you should not let your suspect send threatening gmail to the
victim.

If you can not allow the prisoner to use computers available to you
(many police computers contain very sensitive information), then you
might ask the prisoner what searches s/he wants to do, run those
searches yourself, and give him or her print-outs.

You have a constitutional obligation to provide a reasonable
opportunity to get legal advice. The Yellow Pages have yellowed
greatly since the passage of the Charter. According to the
Canadian Internet Registration Authority, 85%
of Canadians connect to the Internet. Google and other
search engines provide us access to information like telephone
numbers. If you have that access at work, and a prisoner says he
wants to use it instead of the Yellow Pages to identify a lawyer, you
may find it difficult to explain to a judge why you turned him down.

2014.11.15 Search and Seizure - Reports to a Justice

"Do we really have to complete a Form 5.2?"

If you're a peace officer, and you took something away from someone
without their permission by "seizing" it, then yes, you have to complete
a report to a justice. Read s.489.1
of the Criminal Code.

Mr Garcia-Machado,
2014 ONCJ 81 crashed his car, injuring himself and his passengers.
Police obtained his medical records by means of a search warrant but did
not file a report to a justice for 4 months. Those records
established that drugs and alcohol impaired Mr Garcia-Machado.
Because the officer failed to report those records promptly, the trial
judge excluded the evidence.

"Information obtained by way of production orders don't need 5.2's"
- Yes it does. Read s.487.012(6).

"Illegal property, like drugs, get disposed of another way, so we
don't need 5.2's" - Yes you do. Read s.13
of the Controlled Drugs and Substances Act.

The officer who investigated Garcia-Machado thought he had several
months. The section requires reporting "as soon as practicable".
Telewarrants require reporting "as soon as practicable" and within
7 days.

Save yourself embarrassment later. Do the paperwork now.

2014.11.15 Search and Seizure - Automobile Crash Data Recorders

When modern cars crash, an electronic device records the car's speed
and braking activity in the last few seconds before the crash. Do
drivers enjoy sufficient privacy in that data that police officers
require warrants to read and analyze the data?

Two recent decisions do little to answer the question.

Hamilton,
2014 ONSC 447, an off-duty police officer, crashed his truck, killing
someone. Without obtaining consent or a warrant, an investigator
downloaded the data from his "Airbag Control Module", which showed that
he accelerated through an intersection instead of braking. At his
dangerous driving trial, Hamilton asked the trial judge to exclude the
data. Hamilton testified that he believed the data in his
was private to him. The trial judge agreed, but admitted the
evidence under s.24(2), in part because the law had been unclear whether
this search required judicial authorization.

That judge seemed to treat these devices like personal computers or
cell phones.

Mr Fedan,
2014 BCSC 1716 also crashed his car. Again, without a warrant,
police downloaded the data from his "sensing diagnostic module", without
benefit of a warrant. Section 8 of the Charter protects reasonable
expectations of privacy. These have two parts: what the claimant
actually thought, and what the reasonable judge thinks about that
belief. Unlike Hamilton, Mr Fedan did not testify that he thought
the data was private. This trial judge found no subjective
expectation of privacy. The trial judge hinted that she did not
agree with the judge in Hamilton's case that there should be a
reasonable expectation of privacy in this data.

This judge distinguished crash data recorders from computers and cell
phones. The latter usually contain much more personal information.

For all police officers investigating accident scenes, remember that
s.489(2) authorizes you to seize evidence if you are:

lawfully in a place (most highways are public places where you may
lawfully go),

you believe that a crime occurred, and

you believe that the thing you want to seize was used to commit the
offence, or will help prove or disprove the offence.

In the long run, if the electronic devices in vehicles retain
significant information about the habits of their drivers, such as the
routes and times that they drive, officers will need judicial
authorizations. In the short term, while these devices retain only
a few seconds of driving data, reasonable people will disagree whether
warrants are required.

2014.11.11 Search and Seizure - Strip Search

I like the way Mr Justice David Watt writes:

"Bart Alec Muller got arrested. And then he got searched.
Twice. First, a frisk search. Three cellphones. Some money. No drugs.
Second, a strip search. A plastic bag between his buttocks. Crack
cocaine. Cocaine. Oxycodone tablets."

Two confidential sources identified an apartment where a big guy sold
crack, and they described him. Police got and executed a
warrant. They found four people, but no drugs. Just as the
search team entered the building, officers outside the building saw Mr
Muller - a big guy - leave the building. He generally matched the
informants' description. And he dropped an electronic scale as he walked
away.

The officers arrested him for trafficking.

Defence complained that the officers lacked grounds to arrest him:
there are lots of big guys in Windsor. The judge found that the
timing of his departure, his similarity to the sources' descriptions,
and the electronic scale together tipped the balance in favour of
arrest.

The officers frisked Mr Muller, and found three cell phones and some
cash but no drugs. The search team found no drugs in the
apartment. The officers decided to strip-search the four people in
the apartment, and Mr Muller. They found the drugs between his
buttocks.

A strip search requires you to believe you will probably find evidence.
Mr Muller's counsel complained that the police lacked sufficient
grounds. Officers admitted that they find crack cocaine in
underwear or between butt-cheeks only 5% or 7.5% of the time. The
mere possibility that police would find evidence of an offence may
justify a frisk search, but it won't justify a strip-search.

The judge concluded that the officers had sufficient grounds for this
strip search. The last alleged drug transaction occurred only
hours earlier. The electronic scale bore apparent cocaine
residue. Strip-searches of the other occupants of the apartment
located no drugs. By process of elimination, if there were any
drugs, they had to be on Mr Muller somewhere.

If the search was lawful, why did this smart judge order a new trial?
Because the officers did the strip search badly.

Strip searches violate privacy. When performing one, you should
minimize the violation of privacy as much as possible.

These officers, during the search, left the door open to a hallway
from which others could have seen Mr Muller if they passed by.

They made him face the doorway, naked.

These officers made him strip naked. They didn't have
to. He could have worn a shirt when they searched his buttocks.

The video security system allowed others to observe the search
remotely.

The video-recording of the search captured Mr Muller's nakedness,
and the officers took no steps to minimize the number of people who
could view the video.

The officers seized the plastic bag of drugs without letting Mr
Muller remove it himself.

No officer in charge independently approved of the search

In addition, the officers who strip-searched the other suspects kept no
notes and destroyed all video of their searches.

Watt J.A. writes well. You should read his decision. Some
lessons to draw from this case about strip searches include:

Second thought: If you're considering whether to strip search a
suspect, you should first ask yourself whether you will likely
find evidence of the offence for which you arrested.

Second opinion: Ask a senior officer to take responsibility for the
decision to strip search.

Private places for private searches: Minimize the impact on the
prisoner's privacy: minimize the number of eyes that watch; let
him/her cover some parts while you search others.

Be aware of cameras: You become so accustomed to working under video
cameras, you easily forget them. For strip-searches, you need an
objective record of the search process. But recording a
suspect's nakedness preserves it for future eyes to watch.
Therefore, I suggest erecting a narrow modesty screen - such as a
high-backed chair - between the suspect and the camera. If the
suspect chooses to expose himself or herself to the camera - that's
their choice. But you offer as much privacy as you can while
still preserving an objective record of the incident.

Minimize distribution: After the strip-search, whether it obtained
evidence or not, preserve the recording in a sealed envelope.

2014.11.04 Confessions - Person In Authority

Canadian courts developed a hard rule that the prosecution must prove
the voluntariness of all confessions given to a person in
authority. In the peculiar case of Mr J.J.,
2014 ONCA 759, this led to a curious result.

Mr J.J. formed a relationship with a police woman. Her
14-year-old daughter alleged that he had sex with her. He denied
it. The mother kicked him out, but wasn't sure who to
believe. She called him and told him she would reconcile with him
if it was her daughter who initiated the sex. He admitted sex with
the girl.

Ordinarily, if the mother were not a police officer, the trial judge
would admit such a confession into evidence without question. But
this trial judge found that she acted as a police investigator
at the time she made the offer. She was a person in authority.

Therefore, the appeal court found that there should have been a voir
dire to determine the voluntariness of Mr J.J.'s
confession. The appeal court hinted that they weren't sure that
the mother was really acting as a police officer at the time. But
given the trial judge's findings, they had to order a new trial.

As police officers investigating offences, you should not offer
inducements to suspects for the purposes of obtaining confessions.
The usual mistake involves intimating to the suspect that you, the
prosecutor or the judge might treat him more leniently on bail or a
trial if he would admit the crime. This is the first time I've
encountered a police officer offering to sleep with the suspect if he
would just confess.

If you police officers, in your private lives, find yourselves
discussing a possible crime with a potential suspect, beware of your
role as police officer. You may not be able to do what a private
citizen could do in eliciting a confession.

2014.11.01 Right to Counsel - Taking it Seriously

After Mr Wood, 2014 BCPC 13 crashed his car, he acted as if he were in
shock. An officer also noticed that he smelled of liquor, and got
him to blow into a screening device. It registered a fail.
The officer read him his rights, and asked if he wanted to talk to a
lawyer. He said "no". Ambulance attendants took him to
hospital to see if he needed treatment. The officer accompanied
him in the ambulance, and turned on a recording device to capture
conversation.

The officer followed these wise steps with some unwise remarks:

"So, Scott, I've already ah read you, your rights, that was
all of the jabber before. Ah, ahum, before we took off there from scene.
Do you have any questions for me? Do you understand all your rights and
all that jazz?"

When they reached the hospital, the officer accidentally missed reading
a small portion of the blood demand. It might not have made any
difference. But the judge disliked the officer's attitude towards
this suspect's Charter rights. It wasn't "jabber" nor
"jazz". The judge excluded the blood test results.

By all means, record your conversations with your suspects, before and
after you explain their rights. But always take their rights
seriously, because judges do.

2014.10.20 Wiretap Disclosure

Section 193(1)
of the Criminal Code prohibits anyone from disclosing the content of -
and even the existence of - intercepted communications. A Part VI
authorization would do you no good whatever if investigators couldn't
discuss what they've overheard. Therefore, s.193(2)
provides exceptions to the general rule, one of which permits disclosure
of lawfully intercepted communications "for the purpose of any criminal
investigation".

Another exception permits disclosure "for the purpose of giving
evidence".

In Imperial
Oil v. Jacques, 2014 SCC 66, a majority of the Supreme Court
appears to have rewritten that phrase to mean "for the purposes of
preparing to litigate in any proceeding".

The Competition Bureau of Canada investigated price-fixing in Quebec's
retail gas industry. Its investigators obtained authorizations to
record conversations, and gathered enough evidence to lay charges.

Meanwhile, a public interest group launched a class-action suit against
gas retailers. They applied under civil rules for disclosure of
the intercepted communications.

If intercepted communications ought to be kept private, should the
dozens of civil litigants involved in this case obtain the private
conversations of the business people involved? What if their
conversations stray from the price of gas, to more personal topics, such
as their problem children or their love lives?

The court found that the need courts to obtain the truth allows for
such disclosure even in civil cases - subject to controls to prevent
more dissemination than necessary to litigate.

This should not usually affect police investigations. But it
reinforces two concepts:

Interceptions differ from regular evidence because it's an offence
to disclose them, subject to the exceptions provided in s.193.

What you gather during a criminal investigation may end up in
unexpected hands. Always assume that someone will scrutinize
your work.

Detention and Search

An officer stopped Mr Christie,
2013 NBCA 64 for driving with an expired registration sticker. Mr
Christie couldn't produce a licence or registration. Seeing a
hunting knife in a sheath in the driver's door pocket, and an open wine
bottle on the floor behind the driver's seat, the officer detained Mr
Christie, handcuffed him and placed him in the back of the police
car. The officer then searched the car for liquor and weapons.

When you detain a suspect, you may only search for weapons if you have
reason to fear that weapons might harm you. Generally, you can't
search for evidence.

Unsurprisingly, the judges disliked this search, and excluded the
evidence. But they also disliked the detention. In the
absence of evidence of any threat to the officer, they found no need to
handcuff Mr Christie or secure him in the back of the police car.
They found those actions "arbitrary", and therefore a violation of
Charter rights.

Don't handcuff suspects or imprison them in your car for your safety
unless you actually have reasons to fear for your safety.

But...

Canadian weather can freeze or overheat people. Sometimes, you
should put people in your police car for their comfort or safety.
Some of those people may become suspects - such as the driver of a car
involved in a terrible crash. Because the judges see such
significance in putting people in the backs of police cars, you should
tell people who aren't detained that they aren't detained. Check
on them frequently, in case they want to get out.

Searching Cell Phones incidental to Arrest

Ten months after busting Mr Vye,
2014 BCSC 93 for dealing in drugs, police searched his cell phone
"incidental to arrest". The officers examined everything except
the ring-tones. This included the photographs he apparently took
of a naked woman, and his texts about her. Defence challenged this
search.

You can't search incidental to arrest unless there's evidence you think
you might find. No evidence explained what the officers thought
they would find when they searched the phone. A search "incidental
to arrest" must be connected to the arrest. The delay caused the
judge to disbelieve that this search had anything to do with the arrest.

Cell phones can contain lots of data. Because the officers did
nothing to narrow the search to relevant information, the breadth of the
search offended the judge too. It was okay to duplicate the
contents of the phone to preserve them, but not okay to examine
everything.

2014.10.05

Search & Seizure - "Reasonable Expectation of Privacy" - Cop
Ban

Mr Felger,
2014 BCCA 34 posted a sign on his store banning police officers from
unless they possessed a warrant. His lawyer wrote a letter to
police demanding that they respect Mr Felger's prohibition.
Inside, Mr Felger sold marijuana to all members of the public who
entered. Undercover officers entered and purchased drugs without
first obtaining warrants. Mr Felger convinced the trial judge that
by doing so, the officers violated his Charter-protected right of
privacy.

The appeal court disagreed.

Section 8 of the Charter protects people, not places. The court
observed that Mr Felger's sign created an artificial distinction, which
purported to make very public activities private. They found that
he did not enjoy a reasonable expectation of privacy by posting this
sign.

Reading between the lines, I suspect that the police got some good
legal advice before challenging Mr Felger's approach. That's a
good tactic for handling outrageous interpretations of the law.

2014.09.29 Search & Seizure - Warrants and Production Orders -
"Reasonable Grounds to Suspect" that an Offence has been committed

Section 487 and section 487.012 both refer to reasonable grounds to
believe that an offence was committed or was suspected to have been
committed. Long debates have raged over whether this justifies the
granting of a warrant or production order where only suspicion exists
that an offence occurred.

In R
v Fedossenko, 2014 ABCA 314, the majority found that suspicion
suffices for production orders. Expect a further appeal.
Maybe the Supreme Court of Canada will finally answer the debate.

2014.09.13 Search & Seizure - Night Search

Section 488 prohibits the execution of search warrants at night unless
your application satisfies the justice that there are reasonable grounds
to do so, and the justice authorizes it. What justifies a night
search?

Mr L.V.R.'s
2014 BCCA 349 stepdaughter complained that he sexually abused her.
She said he had photographs in his residence. At 7:42pm, police
arrested him at his residence and cleared the residence of people. With
members standing guard to secure the contents, the lead investigator
applied for a search warrant. The Justice of the Peace rejected
his first application because it failed to explain any need for a night
search. The officer applied again, this time explaining:

27. I am re-submitting
this application for a search warrant requesting night time execution
for the following reasons:

a)
[L.V.R.] is currently in custody and will go before a Provincial Court
Justice tomorrow (June 4th, 2008) therefore the evidence that I am
seeking in this search warrant is required prior to his appearance.

b) There are currently
police officers maintaining continuity of the residence located at
[address], Surrey, BC.

c) As this is my last
night shift I will be unavailable until the 10th of June, 2008 and fear
that in this time there would be an opportunity for loss of evidence if
the search warrant is not executed prior to [L.V.R.]'s release from
custody.

The appeal court disagreed that the applicant's availability had any
relevance. Other officers could perform the search. The
prospect that L.V.R. could be released had some relevance - perhaps he
could interfere with data on computers in the residence after his
release. Two things swayed the court:

The residence was empty. Section 488 protects people from
unnecessary invasions of their homes at night. Because the
home was empty, nobody would be disturbed by the search.

Therefore, police officers waiting until daybreak were wasting
time ("idling").

The take-home lessons:

- When applying for Criminal Code search
warrants to search between 9:00pm and 6:00am, always explain why you
need to search at night.

- If you know that nobody will be in the
place you intend to search at night (whether under the Criminal Code or
the CDSA), say so in your application.

- Risk of loss of evidence is a good reason.

- Wasted time of officers is a valid reason.

- Unavailability of a specific officers is a
bad reason.

Arrest & Detention - Plain Smell

Cst Moore stopped a speeding pickup truck. He turned on a
video-recording device before dealing with the driver. After
speaking with the driver, he walked towards his cruiser, and stopped
mid-stride when an "overpowering" odour of vegetative marijuana struck
him. He returned to the driver and explained what he
smelled. He later recovered seedling marijuana plants from the
truck.

Based solely on the smell, could he lawfully arrest the driver, Mr MacCannell,
2014 BCCA 254, and search the truck?

You may arrest people for indictable offences they committed
in the past or are about to commit (s.495(1)(a)),
for offences that they are committing now (s.495(1)(b)),
or on an outstanding warrant (s.495(1)(c)).

Possessing less than 30g of marijuana is a strictly summary conviction
offence. Until Cst Moore looked inside, he could not know whether
Mr MacCannell committed or was about to commit an indictable
offence. Cst Moore had no information about outstanding
warrants. Therefore, he could only arrest if he believed that
Moore was in the course of committing an offence.

Because of Cst Moore's past investigations involving marijuana, the
court found he could distinguish between burnt and fresh
marijuana. Smoke is evidence of possession of marijuana at some
time earlier. Because this smelled fresh, Cst Moore had evidence
that Mr MacCannell continued to possess marijuana.

Was this enough evidence to establish reasonable grounds to believe
that MacConnell was committing an offence? Perhaps he had a
medical marijuana licence.

The court found that an officer need not exclude the possibility of
licences before making the arrest.

Mr MacConnell had no licence. The court upheld his conviction.

Who is the Queen?

Mr McAteer
and some friends, 2014 ONCA 578 wanted to become Canadian without
pledging their allegiance to the Queen. Some were republicans, one
was a Rastafarian. None felt any desire to promise good things for
members of the House of Windsor. The court responded that the oath
is an oath to the Canadian way of governing ourselves, not fealty to a
person:

"[T]he oath is a symbolic commitment to be governed as a
democratic constitutional monarchy unless and until democratically
changed..."

To become Canadian, Mr McAteer must swear an oath of loyalty to our
Canadian system, which uses the monarch as a representative of the
people and the people's way of organizing ourselves.

Search and Seizure - Courier Contracts

Mr Calkins sent a package of illicit drugs to Mr Godbout,
2014 BCCA 319 by courier. Mr Calkins signed a standard form, which
referred to the courier company's website for the full list of
terms. The website included this:

Without notice, DHL may, at its sole discretion, open and
inspect any shipment and its contents at any time. Customs authorities,
or other governmental authorities, may also open and inspect any
shipment and its contents at any time.

Someone at the courier company suspected something about this package
and opened it. When she saw its contents, she told police.
They came and saw, and seized the package, and arranged for a controlled
delivery.

Mr Godbout complained that the police violated his expectations of
privacy. The court observed that the police violated the sender's
privacy. It figured that as the recipient, Mr Godbout could enjoy
no greater expectation of privacy than the sender. The terms of
the contract allowed police to examine the contents, and therefore
nobody violated Mr Godbout's expectations of privacy.

What you find on a website about privacy policies may provide good
evidence about a suspect's expectations of privacy.

Undercover Operations - Mr Big

Mr Hart,
2014 SCC 52 had twin daughters who drowned in a lake. He explained
to his wife that one fell off a dock. He couldn't save her because
he couldn't swim. So, in a panic, he rushed home, forgetting the
other one at the dock. The police didn't buy this story, but he
stuck to it.

Police launched a Mr Big operation, which completely beguiled Mr Hart
and lifted him out of his poverty and social isolation. He
believed the fictitious gangsters were his best friends.

One undercover operator boasted of disciplining prostitutes for the
gang, and hinted that he even killed them. Mr Hart responded by
claiming to have murdered his daughters.

Later, when Mr Hart met Mr Big, he gave conflicting versions of how he
achieved this. Did he push them off the wharf with his shoulder
... or his knee?

The judges agreed that this undercover operation went too far in
persuading Mr Hart to talk.

Prejudicial effect: By involving the suspect in what appears to be
crime, the operation creates evidence of the suspect's bad character,
which the court feared could prejudice the jury against him. After
he spent every day for 4 months trying to join a criminal gang, "... it
is easy to see how the jury could come to view the respondent with
disdain."

Probative value: The prospects of wealth and a welcoming community can
be powerful incentives for vulnerable people like Mr Hart to admit to
crimes - regardless of the truth. And fear of violence from
gangsters could also encourage people to say what they think the
gangsters want to hear. Where the incentives are too strong, the
court may lose trust in the confessions these techniques elicit. Of
course, confessions which reveal details which only the true
culprit could know - such as the location of a murder victim's
body - tend to reveal the truth of the confession. Mr Hart lived
in isolation; his confession revealed no confirmable facts.

By contrast, Albertan police persuaded Mr Mack,
2014 SCC 58 to confess to a murder by applying gentler techniques.
They gave him only modest payments for mild (apparent) criminal
activity. They didn't use scenarios involving violence. His
confessions led to remains of the body. The judges agreed that the
evidence from this undercover operation should be admitted.

Until now, the courts automatically admitted confessions elicited by
this technique. Now, they will examine the confession in a voir
dire to determine whether its probative value exceeds its
prejudicial effect. If not, the jury won't hear anything about it.

Gratuitous comments and scenarios suggesting violence should not
terrify this suspect into telling lies to save his skin.

Beware of turning suspect's vulnerability into a complete dependence
upon his "new friends".

The more heinous the "crimes" that the suspect agrees to perform,
the less likely the judge will permit the jury to hear the confession.

Perhaps for some targets, Mr Big should be a reformed gangster, whose
business involves mostly lawful transactions. Maybe he runs a
slightly shady private investigations firm, in which trust, loyalty and
honesty are important business practices.

Detention - Reasonable Suspicion

Police received an anonymous tip that a man wearing a black T-shirt and
jeans, having dreadlocks and a "baby-face" walking on a particular
street in a troubled neighborhood carried a gun. Police attended
and found Mr Williams
2013 ONCA 772 fit this description. They told him they were
investigating a firearms complaint, and asked if he was armed. He
"bladed" his body, gave no verbal response, and reached for his
waistband. The officers told him to raise his hands and turn
around. He didn't. They grabbed his arms, and quickly found
a loaded handgun in his waistband.

Defence called it an arbitrary detention. The judge agreed that
the tip - by itself - did not provide reasonable grounds for
suspicion. But Mr Williams' behaviour when the officers addressed
him added more information to the tip. This rendered a detention
reasonable.

The risk of a firearm rendered a pat-down search reasonable in the
circumstances. The firearm was properly admitted into evidence.

When justifying a detention, you should explain all of the details
which gave you reason to suspect that crime was afoot.

Sexual Assault Investigation

Sexual assault complainants enjoy some additional protections when they
complain to police.

To defend such complaints, defence often attack the complainant's
credibility. They ask for every police report which pertains to
such complainants. The Supreme Court of Canada concluded that
these reports enjoy the special protections of s.278.1-278.4 of the
Criminal Code. Defence won't receive those police reports just by
asking. They need to prove relevance. R.
v. Quesnelle, 2014 SCC 46

Right to Counsel

After a party, Mr Taylor,
2014 SCC 50 rolled his truck, injuring three of his passengers. An
officer who attended the scene arrested him for impaired driving causing
bodily harm. Mr Taylor said he wanted legal advice, and he wanted
to speak with his father. A paramedic at the scene found nothing
obviously wrong with Mr Taylor's health, but recommended that the
officer take him to the hospital just in case. The officer wisely
took that advice.

The emergency ward was busy that night (perhaps tending to Mr Taylor's
passengers). He waited 20 minutes with the officer before medical
staff attended to him. Medical staff checked out Mr Taylor, and
took blood samples for hospital purposes.

The officer did nothing about access to counsel before leaving the
hospital. He forgot. He called it a "rookie mistake".

Next morning, the officer got a search warrant for the hospital's
samples. Analysis of the samples proved Mr Taylor drove drunk.

Mr Taylor's counsel complained that Mr Taylor did not receive legal
advice at the earliest opportunity. Even though the officer took
no part in drawing Mr Taylor's blood, the appeal courts found sufficient
connection between the officer's conduct and the evidence to justify
excluding the blood test results.

The prisoner's right to counsel "without delay" does not mean that you
must offer a cell phone to the man you arrest before you handcuff
him. You may delay legal rights until you protect people, property
and evidence from peril.

"Without delay" can mean sooner than "when we get to the police
station", especially if you expect detours and delays before calling
lawyers. Don't leave rights to counsel hanging.

Community Policing - Triggering a Detention

When you encounter suspicious people on the street, you may start a
conversation which becomes a detention and then an arrest.

When the interaction changes from "conversation" to "detention", you
must explain s.10(b) rights. Lawyers often disagree when that
moment arrives.

At 2:30am, young Mr B.S.,
2014 BCCA 257 (yes those are his initials) walked with 4 other young
people in a residential neighborhood. An officer approached them
because he thought they might be underage, intoxicated, and possibly
interested in mischief. He smelled liquor, but they denied
drinking. He asked them if they had outstanding warrants.
When he asked Mr K.J. for id, K.J. tried to walk away. The officer
called him back, and looked at his id. Then Mr B.S. started to
fidget with something behind his back. The officer became nervous
for his safety, and decided to search Mr B.S. for weapons. He
found a baton and drugs packaged for sale.

Mr B.S testified that from the moment the police officer first
approached the group he felt he was not free to leave. However,
another member of the group testified that she felt free to go
throughout the interaction with the police.

Defence argued that by approaching the group, the officer detained
them. The officer had no reason to suspect them of any offence,
and therefore the detention was arbitrary. Defence complained that
the officer failed to give any Charter rights until long after
the detention.

The trial judge and the appeal court disagreed. The detention in
this case occurred when the officer decided to search B.S..

But it ain't always so. If your actions would cause a reasonable
person to believe that he or she can not leave, then you trigger a
"psychological detention". Depending on how he called Mr K.J.
back, this officer could have caused the other members of the group to
feel that they couldn't leave either.

At the scene, you can control your words and actions. In the
court room, counsel will urge the court to interpret them
differently. If, at the scene, you clearly distinguish between
liberty and detention, then, in the court room, you can describe that
clear distinction, and dispel confusion about when the conversation
turned into detention.

Searching a Residence in Exigent Circumstances

- 911 call

A
child phoned his grandmother complaining that his parents were
fighting. She called police, telling them that the child would
call only if the fight got "pretty serious". When police
attended the residence, no sound came from the house, even after 25
minutes of knocking. When they broke in, they found Mr Depace,
2014 ONCA 519., drunk, and the child's
mother. They searched the residence more widely, in case
others were in the house, injured. Downstairs, they found
drugs and scales and sheets detailing who owed him money.
Defence argued that the police should have left the house when they
found the three occupants unharmed. The court observed "the
police do not need to take the word of the occupant that everything
is alright."

Search of Cell Phones Incidental to Arrest

To download and examine the contents of a cell phone, you need a
warrant, even if you seized it incidental to arrest. You may still
be able to do a cursory examination of it without a warrant. R. v.
Mann,
2014 BCCA 231

Note-taking

In Acosta,
2014 BCCA 218 the court observed that no rule of law yet requires
police officers to make contemporaneous notes. Failing to take
them in that case led to a costly appeal.

"Plain smell" of marijuana

The plain smell of vegetative (rather than burnt) marijuana emanating
from a vehicle may suffice for grounds to arrest the occupants. Acosta,
2014 BCCA 218

Right to Counsel

Two children complained that their stepfather, Mr T.G.H.,
2014 ONCA 460 sexually abused them for years. Their mom didn't
believe them. The boy told police that a peculiar flap of excess
skin hung over Mr T.G.H.'s anus. When interviewed in January, Mr
T.G.H. denied having such a feature.

In October, police officers got a general warrant to permit them to
examine his anus and if it was there, to photograph it. The female
officer who interviewed him executed the warrant. Because she told
him of his right to counsel at the interview, she felt no need to tell
him of his right to counsel before the execution of this warrant.
She carefully avoided interviewing him during the process.

The defence complained that the execution of the general warrant was a
"detention", and that triggered a right to counsel. The court
agreed. The prior exercise of the right to counsel addressed the
interview. This search addressed a completely different (and
unexpected) investigative technique. The officer breached Mr
T.G.H.'s right to counsel. (The court admitted the evidence under
s.24(2).)

When you execute a warrant which allows you to search a person's body,
such as a DNA warrant, give the subject access to counsel.

General Warrant

Two children complained that their stepfather, Mr T.G.H.,
2014 ONCA 460 sexually abused them for years. Their mom didn't
believe them. The boy told police that a peculiar flap of excess
skin hung over Mr T.G.H.'s anus. When interviewed in January, Mr
T.G.H. denied having such a feature.

Police got a general warrant to permit them to examine his anus and if
it was there, to photograph it. A female officer executed it.

She found and photographed the flap of skin. This evidence helped
prove the case.

The idea of getting a warrant to authorize this intimate examination
was a good one. I was surprised that a female officer executed it
- ordinarily, you should only do such a search upon a person of the same
gender. I think that the warrant should have authorized
photographs whether or not the skin flap was present - the absence of
the skin flap could have been evidence that the child was
mistaken. It would be appropriate to obtain such evidence because
it would have assisted Mr T.G.H. in his defence.

Interviewing the defendant - promises

Police had reason to suspect that Mr M.S.M.,
2014 ONCA 441 sexually abused his daughter. During an interview,
the investigating officer suggested that unless he confessed his
daughter would not get the psychiatric she needed. The trial judge
found this inducement rendered the confession involuntary.

Ordinarily, an inducement is improper if you have control or influence
over it. Linking lenient treatment in court to confession is a
classic example. This inducement was less clearly under the
officer's control. While I suspect this particular case is close to the
line, it highlights the dangers of pushing too close to that line.
Pick your leverage carefully.

Documents in Possession

Police saw Christine Black,
2014 BCCA 192 step out of a building, lock it and walk away.
Inside, sitting on a table, they found a grow operation, and a note
addressed to "Chrissy" instructing her on maintenance of the
operation. Relying on Baldree
2013 SCC 35, the defence argued that the note was hearsay, and therefore
inadmissible. The court disagreed: documents found in the
possession of the defendant may provide circumstantial evidence of their
guilt.

When you search a place or person for evidence of an offence, take some
time to record where you found documents, and read the documents you
find.

DNA Transfer - The Achilles Heel of DNA Evidence

The great advantage of DNA is its sensitivity. And sensitivity is
its drawback too.

Mr M.C.,
2014 ONCA 307 played "zerbert monster" with the neighbor's
5-year-old. A "zerbert" is blowing a raspberry on a child's
skin. The next day, the little girl said that he blew zerberts on
her vagina. With his tongue. She was wearing a sundress over
underwear. An external vaginal swab located only her DNA.
But her underwear bore his DNA too.

The trial judge convicted him, but the appeal court ordered a new
trial. The trial judge failed to consider whether the accused's
DNA could have transferred to the child's underwear innocently.

When you find the suspect's DNA in a place that suggests guilt,
investigate whether it could have transferred there innocently.

After a breath or blood demand, you must take both samples
"as soon as practicable", and account for delays. When police
tested the breath of Mr Singh,
2014 ONCA 293, 28 minutes elapsed between the first and second
samples. Of course, law required the police to wait 15 minutes
after the first sample. But there was no explanation of the delay
for the second sample.

The Court upheld Mr Singh's conviction in this case, but it was a
gamble. If something prevents you from testing the subject
promptly, explain the delays in your report.

Value in Video-Recording Eyewitnesses

In Groves, 2013
BCCA 446, police responded quickly to a homicide in the downtown
east-side. Someone in a gathering of street-people pushed a woman
under a bus. Mr Emerson gave police a video-recorded statement
very shortly after the event, before he had time to discuss what he saw
with other eyewitnesses. Unfortunately, Mr Emerson was “messed up”
on heroin at the time of the event and the recording of the
statement. Even worse, at trial, he retained no memory of the
incident. However, the prompt video-recording of his evidence
allowed the trial judge to admit his statement in evidence, which made
all the difference at the trial.

There is great value in video-recording the statements of eyewitnesses,
even if the witness does not seem valuable at the time.

Searching a Vehicle Incidental to Release

An officer caught Mr Valentine,
2014 ONCA 147 driving a car 20 minutes into his curfew. The
officer arrested Mr Valentine and put him in the back seat of a police
cruiser. The officer then considered releasing him, but because
CPIC indicated that Mr Valentine was on bail for violence and threats,
and that he posed an escape risk, the officer thought that Mr Valentine
could pose a risk to the officers immediately after release. The
officer searched the driver's area of the car for weapons.

He didn't find any weapons, but he did find cash and a smell of fresh
marijuana. He arrested Mr Valentine for possessing it. The
officer then searched the trunk and found 18 pounds of shrink-wrapped
bud.

At trial, Mr Valentine complained that while secured in the police car,
he posed no risk to the officer. Therefore, the officer had no
authority to search his car. These complaints fell on deaf ears.

Because of Mr Valentine's particularly nervous behaviour, and
because of his past history of violence, this "officer safety"
search was justified.

That doesn't mean you can search the car of every person you arrest for
breach of bail. If you want to search for "officer safety", you
better have evidence which shows a real risk.

Arrest and Detention - Right to Counsel

Mr Taylor, 2013 ABCA 342 crashed his car, injuring his passengers,
including his sister. Police figured he drank too much, arrested
him for impaired driving, and told him he could call a lawyer. He
wanted to call his lawyer and his father. Mr Taylor figured he
wasn't hurt, but the ambulance attendants persuaded him to go to the
hospital to be checked out. His speech was clear.

Half an hour passed before he left the scene. Nobody arranged for
him to make phone calls from there. He spent 20 minutes at the
hospital before the nurse took blood samples for the hospital's
purposes. Nobody arranged for him to get legal advice. After
the nurse took blood samples for the hospital, a police officer made a
blood demand. Nobody arranged access to counsel. 40 minutes
later, a doctor drew blood from him for police.

Of course, you should never elicit evidence from a detained or arrested
suspect without first permitting him to get legal advice if he wants it.

Investigators in this case realized this mistake. They got a
warrant for the hospital samples.

The trial judge figured that was okay. Two appeal court judges
found that Mr Taylor should have received the legal advice before the
hospital took the samples. The Supreme Court of Canada may hear
argument in April.

All this could have been avoided. The officer called it a "rookie
mistake" when he failed to arrange access to counsel for Mr Taylor.

Don't make that same rookie mistake.

Arrest & Detention - Explaining why - s.10(a)

Vancouver police knew Boden,
2014 BCSC 66 had a history of violence, weapons, flight from - and
confrontation with - police. They also reason to suspect him of a
series of sexual assaults. So they set up a surveillance
team. Members of that team saw him approach a woman from behind
and grab her right buttock. He then fled in the direction of a
dogmaster and his dog.

When the dogmaster saw Boden, the dogmaster said:

“City Police” “You’re under arrest. Get on the ground or
I’ll send my dog”

Boden replied:

“What? What for?”

The officer repeated his words, but did not identify any offence.

Mr Boden fled. During a protracted struggle, Mr Boden asked:

“What
did I do? What did I do?”

The trial judge found that the officers did not answer the question.

Did he obstruct or assault a peace officer in the execution of
duty?

The trial judge found that the officers breached Mr Boden's s.10(a)
right. When deciding whether to submit to an arrest, Mr Boden was
entitled to know what the officer was alleging against him. The
appeal court found that in exigent circumstances, you can delay the
explanation for later, when things are under control. It's
entirely possible Mr Boden may win on further appeal.

None of this expensive litigation would be necessary if the dogmaster
had added three words to the phrase "You're under arrest" ... "for
sexual assault".

Get in the habit, and stay in the habit, of identifying the reason for
a person's arrest or detention. Section 10(a) of the Charter
requires it.

Search Warrants - Swearing the ITO

Two courts now say that you can swear your Information to Obtain before
a Commissioner for the Taking of Oaths (such as Crown Counsel), and then
submit your sworn document to a Justice of the Peace to issue the
warrant. R.
v. D.G., 2014 ONCA 75; R.
v. Spencer, 2009 SKQB 341.

I see this as one more slow step towards giving telewarrants equal
status to ordinary search warrants.

When searching that place, they found marijuana in abundance. An
officer also seized a birth certificate and a passport of Mr Mandziak,
2014 BCCA 41. The passport asserted that his address was 3325
McQueen Road, but directed anyone finding it to send it to the Canadian
government at another address. The birth certificate bore no
address.

During testimony, the officer provided no explanation why he seized
these things, contrary to the wording of the warrant. He could
have relied on s.489; but he didn't say so.

Two of three judges in the Court of Appeal threw out the conviction and
ordered a new trial. We'll see if it goes on to the SCC.

Lessons to learn:

Read the warrant.

If you want to seize something not named in the warrant, figure out
whether you have the authority to do so.

If you do seize something pursuant to s.489 or "plain view", say so
when asked.

Note-taking

How does a traffic member know the importance of a traffic stop?
In a routine traffic stop, a police officer checked Mr Bains,
2014 BCCA 43. His brief notes in a computer system caught the
attention of a team of police investigating a major drug
conspiracy. Those officers showed him a picture of Mr Bains, to
see if Bains was the driver. The officer recognized him.
That information led to the grant of a wiretap authorization which sunk
Mr Bains.

At trial, Mr Bains challenged the lawfulness of the traffic stop.
Because the officer could remember little to nothing about it, the court
concluded it was an arbitrary detention.

You never know when a little matter will turn into a big matter.
Notes always matter.

Impaired Driving - Refusal & Right to Counsel

In a fairly routine impaired driving investigation after a car
accident, an officer arrested Mr Bagherli,
2013 MBQB 189 and told him of his right to counsel. He wanted a
lawyer. The officer then asked him if he would provide breath
samples. He said "no". The officer arrested him for refusal,
and took him to the police station. Instead of calling a lawyer,
Mr Bagherli fell asleep in the phone room. When asked if he'd like
to speak to a lawyer, he said “No, I’ll talk to him later.” The
officer gave him the supplemental Charter warning. He responded:
“Yeah, whatever”. He never offered to provide a breath sample, nor
did the police re-read the demand or offer him another opportunity to
provide a breath sample.

He beat the charge.

After he asserted that he wanted a lawyer, the officer had an
obligation to hold off eliciting evidence until he got advice.
Instead, the officer asked a key question about the offence.

After you make a demand, proceed as if the suspect will comply.
Let the suspect come up with the idea of refusing. Don't offer him
a choice.

Computer analyses - Search Warrant or General Warrant?

The archaic language of s.487 raised doubts whether an ordinary search
warrant could authorize forensic analysis of the contents of a
computer. Some legal minds in Alberta believed that a general
warrant under s.487.01 would be more appropriate.

One Provincial Court judge there wrote an opinion that s.487
suffices. K.Z.,
2013 ABPC 203; on review to the Superior Court, the judge there agreed:
R
v KZ, 2014 ABQB 235.

This settles the question in Alberta for the short term. But this
is a topic on which reasonable people may reach different conclusions.

If your forensic analysis of a digital device requires more than just
searching it, reconsider using a General Warrant.

This judge also required information about how long it will take to get
the search done. You might want to include such information in
your ITO.

Detention - How to Cause a Detention while Trying Not To

Mr Koczab had 17 kg of cocaine hidden in secret compartments in his
car.

A Manitoban police officer stopped Mr Koczab,
2014 SCC 9 as he sped east. He had an Ontario licence but his
vehicle was registered in B.C.. He explained he worked in the
movie business. The car, the driver, and his explanation seemed
familiar to the officer. He gave Mr Koczab a verbal warning, and
told him he was free to go. But the officer asked if minded
answering a few questions. Relaxed and comfortable, Mr Koczab
replied "Yeah, go ahead". His answers about the car, the movie
business, and his past conviction for a couple of grams of cocaine left
the officer with an ever stronger sense of deja vu. He
asked about the suitcases in the back seat, and whether Mr Koczab
carried liquor, drugs, or large quantities of cash. No. "So
what's in the suitcases?" asked the officer. "Clothes, do you want
to see?" The officer made sure Mr Koczab was giving him permission
to look for drugs. Mr Koczab showed him the clothes, but the
officer noticed something odd about the carpet that looked like a hidden
compartment.

The officer thought that he might detain the accused for a further
criminal investigation, He called for back up for officer
safety. He told the accused “I just have to go to my car for a
minute.” And he did go to his car and call for back up.

The trial judge found that the officer detained Mr Koczab at that
point. He found that the officer implied by this remark that Mr
Koczab should not leave. He found that the background of the many
questions and concerns about drugs established a context in which Mr
Koczab would not feel free to leave. Because the officer
failed to tell Mr Koczab about his right to counsel at that point, the
officer breached Mr Koczab's s.10(b) rights. The judge excluded
all 17kg of cocaine which the officer later discovered, and Mr Koczab
beat the charges.

The appeal court disagreed, but the Supreme Court of Canada unanimously
sided with the trial judge.

For police officers, just saying "You are free to go" doesn't
necessarily make it so. If you act like the person must stay, then
the judge will find that you detained a person.

Grounds for Searching a Suspect for Officer Safety

- "Suspicion" or "Belief"

Mr MacDonald,
2014 SCC 3 played music in his apartment too loud and too late at
night. His landlord complained. Mr MacDonald swore at him,
and kept the music playing. The landlord called police. A
police officer attended and asked him to turn it down. He swore at
her too, and kept the music up loud. She called her supervisor,
Sgt Boyd. He knocked and kicked at Mr MacDonald's door. Mr
MacDonald opened it just wide enough that the supervisor could see a
black shiny object. But Mr MacDonald hid it behind his leg, and
refused to say what it was when Sgt Boyd asked. Fearing it might
be a knife, Sgt Boyd pushed the door open a bit further. He then
saw it was a gun. He barged in and relieved Mr MacDonald of what
turned out to be a loaded handgun, unlicenced for possession in that
province.

Was this warrantless entry into Mr MacDonald's residence lawful?
The trial judge said "yes". An appeal judge said "no". The
Supreme Court of Canada said "yes", but most of them used language which
creates confusion.

Until now, reasonable grounds to "suspect" that life and limb is at
risk suffice to justify intrusions into privacy. If you want to
search for evidence, you need reasonable grounds to "believe" that it's
there.

In this case, the majority (4 judges) said
that an officer safety search "will be authorized by law only if the
police officer believes on reasonable grounds that his or her safety is
at stake and that, as a result, it is necessary to conduct a search"
(para 41). As the minority (3 judges) pointed out, this
significantly changes the law (para 65), eliminating an important
protection for police.

It may not necessarily be the disaster for police described by the
minority.

That's because the majority found that Sgt Boyd had the necessary
grounds to justify this search. But Sgt Boyd never testified that
he "believed" that Mr MacDonald "actually" possessed any weapon, only
that he "might" possess a weapon. In my lexicon that's
"suspicion". To the majority of the Supreme Court of Canada,
apparently, that's reasonable grounds to "believe" in a threat.

In my opinion, the minority decision is better reasoned and better
explained than the majority. If you read this case, read both
decisions. Because of the confusing language, this matter will
doubtless return to the Supreme Court. In the mean time, I expect
confusion in the provincial courts.

Search & Seizure - Warrant Drafting - Source Documents

A junior officer drafted an application for a search warrant. In
it he explained that he saw window coverings, and detected a faint whiff
of growing marijuana when he walked near the property (but he didn't
walk all the way around it). He recited the electrical consumption
records for the residence, and observed that this residence consumed 4x
more electricity than an average home in the area. He obtained
that statistic from what he summarized as a "BC Hydro document".
But the document didn't come from BC Hydro.

This gave the JJP a false sense of the reliability of the document.

On appeal, the court found that the warrant shouldn't have been
granted. The officer should have:

gone all the way around the property, in order see all window
coverings, and to prove that the smell didn't come from somewhere
else;

attached the statistics document, or summarized it accurately.

There is much value in attaching an exhibit to your ITO, if the exhibit
explains succinctly some important evidence in your application.

Good Cop - Bad Cop - Violent Cop

A jury found that Mr Singh,
2013 ONCA 750 and his accomplice violently stole $350,000 worth of
copper. The evidence proved his guilt, but the police
investigation tactics bought him freedom.

The police investigation included a tactic of assaulting him three
times to get him to confess. Because of his charges, Mr Singh
chose not to cooperate with the police discipline process; the officers
suffered no meaningful penalty.

The Court of Appeal found that the police tactics were so outrageous
that it had to disassociate the court from the police conduct. Mr
Singh was freed.